Reforming the Statute of Limitations for Child Sex Abuse: New York’s Child Victims Act Shouldn’t Be Political, But It Is
By MARCI A. HAMILTON
Thursday, June 10, 2010
Last week, the New York Child Victims Act (available at http://open.nysenate.gov/legislation/bill/S5893A) was defeated in the Senate Codes Committee. For New York’s children, it was a choice that favors child predators, and therefore a bad day. However, it was an interesting session and the bill will be re-introduced next session — and every session until it is passed, according to sponsors Assemblywoman Marge Markey and Senator Ruth Hassell-Thompson. The only impact is that child predators have one more year to operate under the anonymity afforded by New York’s extremely short statutes of limitations for child sex abuse.
The bill embodies the same type of statute of limitations (“SOL”) reform that I’ve advocated in multiple columns here at FindLaw, and in my book Justice Denied: What America Must Do to Protect Its Children. It would create a short 5-year extension for criminal and civil SOLs for child sex abuse, and it would open a “window” of one year for all past victims to come forward without having to worry about expired statutes of limitations. The extension is too short in my view, but the window is absolutely crucial to identifying child predators.
As I’ve explained, such reform is the only tried-and-true method for identifying hidden child perpetrators, as the enactment of the legislation establishing the California SOL window proved. In this column, I’ll further discuss New York’s continuing experience with reform for children.
The Recent History of the New York CVA
After the CVA thrice passed in the New York Assembly, Assembly Speaker Sheldon Silver told the Senate that he would be more than willing to get the bill to the floor in the Assembly again, but first, it needs to be passed by the Senate.
Thus, the Senate’s Codes Committee was the first stop. As noted above, the CVA was voted upon there, and lost last week. However, the CVA never even made it into a committee meeting when now-convicted Sen. Joseph Bruno was the Senate Majority Leader, so the fact that the bill even got a vote in a Senate Committee was history itself.
This legislation for child protection should have been a no-brainer. Instead, it has become thoroughly political. Reportedly, New York Senate Republican leader Dean Skelos ordered Republicans to vote against it in a bloc, and they did so in Committee — even those who had told survivors they favored the bill and would vote for it.
If there had been any doubt about the source of the most virulent opposition to the bill, Senator Lanza made it crystal clear: It continues to be the Catholic Conference. Lanza basically spoke from their playbook, claiming that giving child-sex-abuse victims the ability to go to Court would “ruin” the Church, and that the introduction of the bill was driven by anti-Catholic animus. He became quite passionate, insisting that no one was going to “destroy my church.” Sen. Flanagan, too, took his cue from the Catholic Conference, claiming (inaccurately) that the same bill has bankrupted the Church in California.
In sharp contrast, the hero of the day for children was Chair Eric Schneiderman, who, in measured tones, stated that the issue was a hard one, but in the United States, those who are harmed should have a remedy. With respect to New York’s child-sex-abuse victims, the vast majority have been blocked from receiving any remedy at all because of overly-short SOLs. (The lack of such remedies not only leaves the victim without justice, but also allows known perpetrators to continue to enjoy secrecy and impunity.)
Schneiderman also responded to Senator Flanagan, correctly pointing out that the Church was not, in fact, bankrupted in California. Indeed, the only California diocese to bring voluntary bankruptcy proceedings was the San Diego Diocese, which was publicly chastised by the bankruptcy judge for misleading her about the extent of its impressive wealth. No services were cut, and no parishes or schools were closed because the victims created by the Church were permitted to go to court.
In the Codes Committee, three Democrats joined the Republicans in voting against letting the bill go to the floor, though none appeared at the Committee meeting, voting only in absentia. Sen. Shirley Huntley, whose website claims she has been a strong advocate for children, was a particular disappointment. Sen. Breslin, who is Catholic, and Sen. Jeff Klein also voted against SOL reform.
Legislators Who Seem to Care More About the Vandalism of Property than the Well-Being of Children
Here is where New York politics waltzed into Alice in Wonderland territory: Mere days after the Codes Committee killed the CVA this session, Sen. Jeff Klein — one of a number of Senators who couldn’t be bothered to show up for the Codes Committee vote on the CVA — joined Archbishop Timothy Dolan and other religious leaders to tout S.1909, (available at http://open.nysenate.gov/legislation/api/1.0/html/bill/S1909), which increases the criminal penalties for vandalism of church and synagogue properties.
Klein, who was recently embroiled in an alleged pay-to-play scandal when he was caught selling $50,000 “exclusive meetings” to special interest groups, apparently has taken an active role in fighting against the vandalism of church walls. According to the Yonkers Insider, ” In February of this year, Senator Klein helped clean up graffiti on the rectory wall of Saint Francis Xavier Church in Morris Park in the Bronx. Saint Francis Xavier Pastor Father Matthew Fiore reached out to Senator Klein’s office after finding the graffiti on the rectory wall on the first floor of the church on the morning of Friday, February 19th. Within 24 hours of the Pastor contacting Klein’s office, Senator Klein and his graffiti clean-up crew went to the church to remove the graffiti.”
To quote one of the victims of incest who has been fighting for the CVA, in light of Klein’s indifference to child-sex-abuse victims, his swiftness in addressing church graffiti issues was like a “kick in the gut.” Recently, all one hears about is the mishandling of child sex abuse within the Catholic Church worldwide. Yet somehow, in New York, the Catholic Conference was capable of stifling all child-sex-abuse victims’ claims and, at the very same time, obtaining for itself additional penalties against those who damage its property. You don’t have to be a genius to figure out that the New York Catholic Conference is putting property ahead of children’s safety in light of these two developments, spanning just two days!
New York’s Archbishop Has Proven Himself Indifferent to Children’s Victimization
How could New York Archbishop Timothy Dolan be so tone-deaf that he would create the circumstances for such an unflattering and, frankly, unChristian, pairing of issues? Didn’t Jesus throw out the moneychangers from the temple and threaten all who harmed the little ones? Once again, the Catholic bishops lack any sense of how what they do resonates with child-sex-abuse victims. They are persistently indifferent.
This incapacity for empathy with victims of priests was further underscored last week by the Pope, when he included Dolan on the committee of bishops that is charged with looking into the Irish child-sex-abuse situation. From a child-sex-abuse victim’s perspective, what has Dolan done so far? As the Archbishop of Milwaukee — his former post — he succeeded in keeping the secrets of the Milwaukee Archdiocese by killing CVA reform when he was there. And now, he has succeeded on the same score in New York. One victim after another has blogged that putting Dolan on such a committee is the equivalent of letting the fox guard the henhouse. Some of them were even sharper in their language—describing the decision as a move that charged the fox with guarding the little chicks in the henhouse, easy pickings.
Currently, New York has one of the stingiest statutes of limitations for child sex abuse in the entire country — 18 years-old for criminal charges and 23 for civil claims. In the future, it is inevitable that New York will radically expand these statutes of limitations for child sex abuse, because justice demands it, and because that is the trend in the entire country. Florida just eliminated all of its statutes of limitations for child sex abuse; Delaware did the same thing in 2007; Connecticut gives victims until age 48; Pennsylvania until age 53; New Jersey has a liberal discovery rule (which New York courts rejected, saying it was an issue for the legislature). Thus, the Catholic Conferences have their fingers in a dike that is crumbling around their hands. Yet it seems that they will keep those fingers in place as long as the bishops’ lobbying dollars last, and as long as New York Senate members like Sens. Klein, Lanza, and Flanagan continue to act as they did last week.
Research establishes that one in four girls, and one in five boys, are sexually abused. Not only clergy child-sex-abuse victims, but incest victims too, are increasingly demanding their day in court, and the kind of statute-of-limitations reform that would make that possible. And there are a lot more incest victims than there are clergy victims. As society increasingly acknowledges the gravity and scope of the child-sex-abuse problem, and comes to understand the scientific studies showing that victims often need decades to come forward, citizens will demand laws that fit the needs of the victims, not the perpetrators or the institutions that assigned child abusers to work with children. Given the vital role of SOL reform in identifying perpetrators and creating justice for victims, and the growing political will of the victims, we may soon see New York legislators losing — not holding — seats when they let party leadership and the bishops drown out the voices of the victims.
Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com.
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2010-06-10 21:46:272015-01-24 21:47:50Professor Marci A. Hamilton, Reforming the Statute of Limitations for Child Sex Abuse: New York's Child Victims Act Shouldn't Be Political, But It Is, FindLaw
As revelations of childhood sexual abuse by clergy have become epidemic across the globe, the Vatican has instituted a number of measures to increase transparency and action in dealing with the crisis. The Pope has now met with victims, accepted the resignation of a number of bishops and issued a directive to report abuse to civil authorities if civil law requires it.
These steps are welcome and necessary, but, with all due respect, they don’t mean much to the countless victims of priest sex abuse who have yet to experience anything approaching justice. Survivors of these heinous crimes, including far too many here in Connecticut, have suffered for years in ignominy and silence.
Their suffering will continue unless Connecticut immediately joins the growing movement of states across the country that are introducing and enacting laws to reform their statutes of limitation for childhood sexual abuse. Survivors typically need decades to come forward and the legal system offers the only real path to justice and the only viable means of identifying child predators who are operating under the radar.
In fact, there are two reforms that must be passed in order to level the playing field for victims. First, civil and criminal statutes of limitations need to be liberally extended or totally eliminated, as Alaska, Delaware and Maine have done. Florida will soon join their ranks as a bill eliminating all SOLs for child sex abuse was passed this week and is likely to be signed shortly by the governor.
Second, the courthouse doors need to be opened for victims even if their SOLs have already expired. By creating a “window” — a set time period for victims to initiate legal proceedings against their perpetrators — states would also be performing an essential public service by exposing the names and crucial information about these abusers. California and Delaware have embraced such reform, and others, including Arizona, Florida, New York and Wisconsin, are considering the same. In California, the public learned the identities of 300 child predators while the window was in place in 2003.
To their tremendous credit, Connecticut legislators are considering a bill, HB5473, which would, at once, extend the SOLs and create a window. But Connecticut bishops are vehemently opposing it. At the same time the Vatican was releasing documents online to prove its dedication to transparency, churchgoers received a letter from these bishops urging them to call their state representatives to kill the bill.
The letter focused first on dollars, telling parishioners that legislative reform that even temporarily eliminated SOLs “caused the bankruptcy of at least seven dioceses.” This is totally untrue. Only California and Delaware have thus far enacted such “windows” and in those states only two bankruptcies have been filed, with both being voluntary. In other words, they were filed to protect assets, not because the dioceses were without funds to pay victims. In fact, the San Diego diocese’s bankruptcy filing was, for all intents and purposes, thrown out of court because of its vast wealth — it, like dioceses across the country, owns millions of dollars in property, much of it not dedicated to religious use, so settlements were paid out of property and insurance proceeds. No services were even remotely affected.
The Connecticut bishops also told their parishioners that Catholic Charities and the programs under its aegis would be negatively impacted by lawsuits, but they failed to note that over 70 percent of the organization’s funding is paid by local, state and federal subsidies. Only a very small fraction comes from the parishes.
Further, the bishops claimed that they could never defend against potential lawsuits because some cases would be decades old. What they neglected to explain is that eliminating the SOLs does not eliminate the burden of proof on the plaintiff. Simply stated, if the plaintiff cannot prove the elements of the tort, the case does not go forward. And, unfortunately for the victims, much of the proof documenting how known child predators were moved from one diocese to another is hidden in the Church’s secret archives.
The bishops also asserted that SOL reform legislation is discriminatory because it targets theCatholic Church, which is patently false.
So it all comes down to a choice for Connecticut’s legislators: Do they defer to the bishops, or do they protect the children of their state? The correct moral and public policy choice is obvious.
Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Benjamin N. CardozoSchool of Law at Yeshiva University, and is the author of “An Action Plan For The Catholic Church” and “Justice Denied: What America Must Do to Protect Its Children.”
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2010-04-30 20:21:352014-06-01 20:22:41The truth about statute-of-limitation reforms, Marci A. Hamilton, Connecticut Post
South Dakota made the highly unusual move of reducing its child sexual abuse SOL so as to short-circuit child-sex-abuse claims by Native American victims against Catholic priests.
ENTITLED, An Act to limit the source of recovery in certain civil actions for childhood sexual
abuse injuries.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 26-10-25 be amended to read as follows:
26-10-25. Any civil action based on intentional conduct brought by any person for recovery of
damages for injury suffered as a result of childhood sexual abuse shall be commenced within three
years of the act alleged to have caused the injury or condition, or three years of the time the victim
discovered or reasonably should have discovered that the injury or condition was caused by the act,
whichever period expires later. However, no person who has reached the age of forty years may
recover damages from any person or entity other than the person who perpetrated the actual act of
sexual abuse.
HB No. 1104 Page 1 An Act to limit the source of recovery in certain civil actions for childhood sexual abuse injuries.
=========================
I certify that the attached Act
originated in the
HOUSE as Bill No. 1104
____________________________
Chief Clerk
=========================
____________________________
Speaker of the House
Attest:
____________________________
Chief Clerk
____________________________
President of the Senate
Attest:
____________________________
Secretary of the Senate
House Bill No. 1104
File No. ____
Chapter No. ______
=========================
Received at this Executive Office
this _____ day of _____________ ,
20____ at ____________ M.
By _________________________
for the Governor
=========================
The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
____________________________
Governor
=========================
STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________ , 20___
at _________ o’clock __ M.
____________________________
Secretary of State
By _________________________
Asst. Secretary of State
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2010-03-29 23:21:302014-02-11 23:27:30HB1104 amends SOL so as to short-circuit child-sex-abuse claims by Native American victims against Catholic priests
Attorneys and advocates called Wednesday for Connecticut to become the fourth state in the nation to eliminate the civil statute of limitations in child sexual abuse cases.
The current age of 48 was established by the legislature in 2002 when lawmakers said that a victim should have 30 years to make a claim upon reaching the age of 18. As such, the age of 48 was written into the law.
Sen. Andrew McDonald, a Stamford Democrat who co-chairs the judiciary committee, said that many of the witnesses Wednesday were talking about the Roman Catholic Church and the allegations of sexual abuse against the late Dr. George Reardon at St. Francis Hospital and Medical Center in Hartford. But he said the bill doesn’t mention any particular entity.
“This legislation doesn’t speak about anybody in particular,” McDonald said. “It could be family members suing family members.”
Prompted by the Reardon case, some lawmakers are trying to eliminate the statute of limitations – in a similar move to a failed attempt last year that expired in the judiciary committee without a vote. While attorneys in the Reardon case favor the bill, the Catholic Church, the American Tort Reform Association, and the Insurance Association of Connecticut all testfied against it. An attorney for the Catholic Church said the bill is “almost certainly to be unconstitutional” if it is passed and signed into law.
“The purpose of the statute of limitations is to provide rights to both parties,” said Susan Giacalone, representing the insurance association. “It would allow cases that have ceased – this would revive a claim that might be unconstitutional.”
Maine, Delaware, and Alaska have all eliminated the civil statute of limitations in child sexual abuse cases, said Richard Kenny, an attorney for the past 35 years. In Delaware, there was a “window bill” that eliminated the statute of limitations retroactively for two years.
“The age 48 is purely an arbitrary number,” Kenny said. “Someone that’s 48 years of age and one week” is barred from making a claim, but someone who is 47 can file a lawsuit.
“We are not changing any of the requirements in terms of proving a case,” Kenny said. “If the case cannot be proven, that case is going out the door. … It’s the plaintiff that needs to prove that case. … The trend is going in the direction of extending the statute of limitations.”
The civil statute of limitations has been changed three times in Connecticut, and the last extension was in 2002.
In some cases from decades ago, claims can be difficult to prove because many of the witnesses may have died. Rep. Michael P. Lawlor, the committee’s co-chairman, said that in those cases, there may be very little provable evidence.
“You’re relying on the emotions of the jury in some ways,” Lawlor said.
Well-known Hartford attorney Wesley Horton, on behalf of the Catholic Church, submitted written testimony against the bill that said the current law “is already extraordinarily generous to people with sexual abuse claims from their childhood.”
“The important public purposes of having statutes of limitations will be eroded” if the bill passes, Horton wrote. “Law-abiding people, corporations, and insurance companies will lose confidence that they can rely on existing statute of limitations as they ask themselves and their legislators: ‘what statute of limitations will be the next one to fall?’ ”
“I feel like that pedophile gets away with it after the statute of limitations. I don’t agree with it,” said Sen. Edwin Gomes, a Bridgeport Democrat. “I want him to get everything that comes to him. Everything.”
Some victims have committed suicide, while others have suffered from substance abuse and depression, officials said.
“Sexual abuse and incest live and thrive in silence,” said Andrea Judd Laws, who is now 51 years old.
She said she was 14 years old and was babysitting when she was abused by a family member.
“I was an easy going, happy, little kid, but now I was broken,” Laws said. “At age 16, I attempted suicide for the first time. … There are still times that I wish I said nothing. … At least my parents understood why my personality changed so much. … Make coming forward worth it. Change this law. No statute of limitations.”
“Thank you for your bravery and your courage,” McDonald told Laws.
Cary Silverman, an attorney representating the American Tort Reform Association, opposed the bill because he said that any statute of limitation should not be changed after the fact.
“They ought not to be changed retroactively,” said Silverman, who also testified against the Connecticut bill last year. “Connecticut has the longest statute of limitations that I’m aware of.”
Nine other states have studied the issue during the past year, and eight did not receive a vote out of the legislative committee, Silverman said. But Oregon passed a law during the past year that raised the statute of limitations to 40 years of age – which is lower than Connecticut’s current level of 48 years old.
West Hartford resident John C. Brandon, 57, said that he met Dr. Reardon when he was 10 years old in 1962 and was in traction “when he came onto the ward one night” at St. Francis Hospital. Brandon said he then left with Reardon and went to an office in the hospital that was equipped as a photography studio.
“This guy had no business to be trolling the wards like the Grim Reaper,” Brandon said. “He did it many, many times for many, many years. I think it’s clear he was a doctor, and doctors are treated with a lot of reverence and respect.”
Brandon said he recalled the details of the photography studio in the hospital.
“This was big equipment – reflectors that you use to reflect the light,” he said. “Folks like me would like to have some redress because it’s the right thing to do. … You’re just left shaking your head, like what just happened?”
He said he had not recalled Reardon’s name, adding, “This was the first and only time meeting the guy.”
“What happened to you is outrageous, whether it happened in 1962 or now,” Gomes said. “I don’t care when it happened. … I don’t think there should be any statute of limitations.”
Anne Latrina Brown, a former nurse at the state’s Riverview Hospital, said the statute should be lifted. Many of those she treated at Riverview who had severe addictions to alcohol and drugs had been sexually abused as children.
Jennifer Judd Aparico said she was “still in survivor mode” and did not immediately report the alleged abuse by her family member for many years. Her aunt, Andrea Judd Laws, testified earlier at the hearing.
“Counseling was not an option because they are mandated reporters,” she said. “Every door was closed at every turn. … I thought I was protecting my siblings. You can do what you want to me. Just leave them alone.”
“I’m not sure exactly when it stopped,” she said, adding that many thoughts had been blocked out from her mind.
Sen. John Kissel said, “That took an incredible amount of courage to do.”
Peter Sullivan said that in 1968 his three brothers and he were all victimized by Reardon.
“Only my youngest brother is allowed to bring suit,” Sullivan told legislators. “I have no recourse whatsoever because I am over 48. I don’t know how anyone can say that is justice. … I’ve been to the West Hartford Police Department to look at pictures of myself. It’s a nightmare I’m going to have to live with the rest of my life. … It’s just not justice.”
Sullivan contacted the West Hartford police, and he was asked to bring pictures of himself from those days in the 1960s.
“All four of us were victimized, and in 30 years, not one of us talked to each other about it,” Sullivan said. “We all thought it was an individual situation with each of us.”
A lawyer for various churches who handles abuse cases, L. Martin Nussbaum, said later that the church often hires insurance archaeologists to find old insurance policies.
“Claims that are that long ago are reparations,” Nussbaum told lawmakers. “Because of the out-sized press coverage, there’s less and less confidence in the judicial system.”
A lawsuit was filed against the Hare Krishnas with 400 claimants that led to a bankruptcy in Los Angeles that has not received much publicity nationally, he said.
“There’s been out-sized reporting about the Catholic situation,” Nussbaum said. “Compare that to the public schools, anywhere in the country, but there’s a perception that there’s a Catholic problem.”
“Because of sovereign immunity, there’s no recovery” in cases against public schools, he said. Both Nussbaum and John King, an attorney for the church, said there is no “level playing field” in the process of filing lawsuits between public and private cases.
After the Connecticut law was changed in 2002, 81 claims were filed against the Catholic Church, Nussbaum said. “Statute of limitations perform an important purpose,” he said.
“Every single time, in every single state … they have been plaintiffs attorneys seeking to sue the Catholic Church,” Nussbaum said. “The bill is almost certainly to be unconstitutional. … This legislation is really being driven by the Dr. Reardon case. … This is about the Reardon case.”
“Let me interrupt you. I don’t think that’s fair,” McDonald said. “I don’t think it’s an accurate statement to say that’s the focus of the legislation, at least from my perspective.”
Nussbaum added, “I’ve never seen a clearer record that if the legislature passes the bill, it will pass a bill that is unconstitutional.”
Both St. Francis Hospital and the Archdiocese of Hartford are currently being in the Reardon case.
“I didn’t know that the Archdiocese was a defendant in that litigation,” McDonald told the lawyers for the Connecticut Catholic Public Affairs Conference.
Nussbaum said the state legislature passed a law in 2002 that allowed more lawsuits against the Catholic Church, but “it did nothing about identical circumstances” in a case involving female athletes and sexual abuse at Southington High School.
“Is it possible that the Catholic Conference could be sued? The Vatican is being sued in some cases,” Nussbaum said.
At one point, a legislator said the testimony was personal for him.
“I understand this issue in a very personal way,” said Rep. Gary A. Holder Winfield, a New Haven Democrat. “This bill is not about the Catholic Church. This bill is beyond the Catholic Church. … There’s a lot of pain for those people.”
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2010-03-17 20:20:402014-06-01 20:21:24Debating The Statute of Limitations In Child Sexual Abuse Cases; Current Limit Of Age 48 Would Be Lifted Under Bill, Christopher Keating, Courant Blogs.com
View Raised H.B. 5473, as referred to the Joint Committee on Judiciary on March 5, 2010.
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2010-03-05 00:03:412014-02-12 00:06:32Testimony Before the Connecticut State Joint Committee on Judiciary • Relative to Raised Bill No. HB-5473: An Act Concerning Actions to Recover Damages for the Sexual Abuse of a Minor
Professor Marci A. Hamilton, Reforming the Statute of Limitations for Child Sex Abuse: New York’s Child Victims Act Shouldn’t Be Political, But It Is, FindLaw
/in New York, NY Child Victims Act /by SOL ReformReforming the Statute of Limitations for Child Sex Abuse: New York’s Child Victims Act Shouldn’t Be Political, But It Is
By MARCI A. HAMILTON
Thursday, June 10, 2010
Last week, the New York Child Victims Act (available at http://open.nysenate.gov/legislation/bill/S5893A) was defeated in the Senate Codes Committee. For New York’s children, it was a choice that favors child predators, and therefore a bad day. However, it was an interesting session and the bill will be re-introduced next session — and every session until it is passed, according to sponsors Assemblywoman Marge Markey and Senator Ruth Hassell-Thompson. The only impact is that child predators have one more year to operate under the anonymity afforded by New York’s extremely short statutes of limitations for child sex abuse.
The bill embodies the same type of statute of limitations (“SOL”) reform that I’ve advocated in multiple columns here at FindLaw, and in my book Justice Denied: What America Must Do to Protect Its Children. It would create a short 5-year extension for criminal and civil SOLs for child sex abuse, and it would open a “window” of one year for all past victims to come forward without having to worry about expired statutes of limitations. The extension is too short in my view, but the window is absolutely crucial to identifying child predators.
As I’ve explained, such reform is the only tried-and-true method for identifying hidden child perpetrators, as the enactment of the legislation establishing the California SOL window proved. In this column, I’ll further discuss New York’s continuing experience with reform for children.
The Recent History of the New York CVA
After the CVA thrice passed in the New York Assembly, Assembly Speaker Sheldon Silver told the Senate that he would be more than willing to get the bill to the floor in the Assembly again, but first, it needs to be passed by the Senate.
Thus, the Senate’s Codes Committee was the first stop. As noted above, the CVA was voted upon there, and lost last week. However, the CVA never even made it into a committee meeting when now-convicted Sen. Joseph Bruno was the Senate Majority Leader, so the fact that the bill even got a vote in a Senate Committee was history itself.
This legislation for child protection should have been a no-brainer. Instead, it has become thoroughly political. Reportedly, New York Senate Republican leader Dean Skelos ordered Republicans to vote against it in a bloc, and they did so in Committee — even those who had told survivors they favored the bill and would vote for it.
If there had been any doubt about the source of the most virulent opposition to the bill, Senator Lanza made it crystal clear: It continues to be the Catholic Conference. Lanza basically spoke from their playbook, claiming that giving child-sex-abuse victims the ability to go to Court would “ruin” the Church, and that the introduction of the bill was driven by anti-Catholic animus. He became quite passionate, insisting that no one was going to “destroy my church.” Sen. Flanagan, too, took his cue from the Catholic Conference, claiming (inaccurately) that the same bill has bankrupted the Church in California.
In sharp contrast, the hero of the day for children was Chair Eric Schneiderman, who, in measured tones, stated that the issue was a hard one, but in the United States, those who are harmed should have a remedy. With respect to New York’s child-sex-abuse victims, the vast majority have been blocked from receiving any remedy at all because of overly-short SOLs. (The lack of such remedies not only leaves the victim without justice, but also allows known perpetrators to continue to enjoy secrecy and impunity.)
Schneiderman also responded to Senator Flanagan, correctly pointing out that the Church was not, in fact, bankrupted in California. Indeed, the only California diocese to bring voluntary bankruptcy proceedings was the San Diego Diocese, which was publicly chastised by the bankruptcy judge for misleading her about the extent of its impressive wealth. No services were cut, and no parishes or schools were closed because the victims created by the Church were permitted to go to court.
In the Codes Committee, three Democrats joined the Republicans in voting against letting the bill go to the floor, though none appeared at the Committee meeting, voting only in absentia. Sen. Shirley Huntley, whose website claims she has been a strong advocate for children, was a particular disappointment. Sen. Breslin, who is Catholic, and Sen. Jeff Klein also voted against SOL reform.
Legislators Who Seem to Care More About the Vandalism of Property than the Well-Being of Children
Here is where New York politics waltzed into Alice in Wonderland territory: Mere days after the Codes Committee killed the CVA this session, Sen. Jeff Klein — one of a number of Senators who couldn’t be bothered to show up for the Codes Committee vote on the CVA — joined Archbishop Timothy Dolan and other religious leaders to tout S.1909, (available at http://open.nysenate.gov/legislation/api/1.0/html/bill/S1909), which increases the criminal penalties for vandalism of church and synagogue properties.
Klein, who was recently embroiled in an alleged pay-to-play scandal when he was caught selling $50,000 “exclusive meetings” to special interest groups, apparently has taken an active role in fighting against the vandalism of church walls. According to the Yonkers Insider, ” In February of this year, Senator Klein helped clean up graffiti on the rectory wall of Saint Francis Xavier Church in Morris Park in the Bronx. Saint Francis Xavier Pastor Father Matthew Fiore reached out to Senator Klein’s office after finding the graffiti on the rectory wall on the first floor of the church on the morning of Friday, February 19th. Within 24 hours of the Pastor contacting Klein’s office, Senator Klein and his graffiti clean-up crew went to the church to remove the graffiti.”
To quote one of the victims of incest who has been fighting for the CVA, in light of Klein’s indifference to child-sex-abuse victims, his swiftness in addressing church graffiti issues was like a “kick in the gut.” Recently, all one hears about is the mishandling of child sex abuse within the Catholic Church worldwide. Yet somehow, in New York, the Catholic Conference was capable of stifling all child-sex-abuse victims’ claims and, at the very same time, obtaining for itself additional penalties against those who damage its property. You don’t have to be a genius to figure out that the New York Catholic Conference is putting property ahead of children’s safety in light of these two developments, spanning just two days!
New York’s Archbishop Has Proven Himself Indifferent to Children’s Victimization
How could New York Archbishop Timothy Dolan be so tone-deaf that he would create the circumstances for such an unflattering and, frankly, unChristian, pairing of issues? Didn’t Jesus throw out the moneychangers from the temple and threaten all who harmed the little ones? Once again, the Catholic bishops lack any sense of how what they do resonates with child-sex-abuse victims. They are persistently indifferent.
This incapacity for empathy with victims of priests was further underscored last week by the Pope, when he included Dolan on the committee of bishops that is charged with looking into the Irish child-sex-abuse situation. From a child-sex-abuse victim’s perspective, what has Dolan done so far? As the Archbishop of Milwaukee — his former post — he succeeded in keeping the secrets of the Milwaukee Archdiocese by killing CVA reform when he was there. And now, he has succeeded on the same score in New York. One victim after another has blogged that putting Dolan on such a committee is the equivalent of letting the fox guard the henhouse. Some of them were even sharper in their language—describing the decision as a move that charged the fox with guarding the little chicks in the henhouse, easy pickings.
Currently, New York has one of the stingiest statutes of limitations for child sex abuse in the entire country — 18 years-old for criminal charges and 23 for civil claims. In the future, it is inevitable that New York will radically expand these statutes of limitations for child sex abuse, because justice demands it, and because that is the trend in the entire country. Florida just eliminated all of its statutes of limitations for child sex abuse; Delaware did the same thing in 2007; Connecticut gives victims until age 48; Pennsylvania until age 53; New Jersey has a liberal discovery rule (which New York courts rejected, saying it was an issue for the legislature). Thus, the Catholic Conferences have their fingers in a dike that is crumbling around their hands. Yet it seems that they will keep those fingers in place as long as the bishops’ lobbying dollars last, and as long as New York Senate members like Sens. Klein, Lanza, and Flanagan continue to act as they did last week.
Research establishes that one in four girls, and one in five boys, are sexually abused. Not only clergy child-sex-abuse victims, but incest victims too, are increasingly demanding their day in court, and the kind of statute-of-limitations reform that would make that possible. And there are a lot more incest victims than there are clergy victims. As society increasingly acknowledges the gravity and scope of the child-sex-abuse problem, and comes to understand the scientific studies showing that victims often need decades to come forward, citizens will demand laws that fit the needs of the victims, not the perpetrators or the institutions that assigned child abusers to work with children. Given the vital role of SOL reform in identifying perpetrators and creating justice for victims, and the growing political will of the victims, we may soon see New York legislators losing — not holding — seats when they let party leadership and the bishops drown out the voices of the victims.
Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com.
The truth about statute-of-limitation reforms, Marci A. Hamilton, Connecticut Post
/in Uncategorized /by SOL ReformBy Marci A. Hamilton
As revelations of childhood sexual abuse by clergy have become epidemic across the globe, the Vatican has instituted a number of measures to increase transparency and action in dealing with the crisis. The Pope has now met with victims, accepted the resignation of a number of bishops and issued a directive to report abuse to civil authorities if civil law requires it.
These steps are welcome and necessary, but, with all due respect, they don’t mean much to the countless victims of priest sex abuse who have yet to experience anything approaching justice. Survivors of these heinous crimes, including far too many here in Connecticut, have suffered for years in ignominy and silence.
Their suffering will continue unless Connecticut immediately joins the growing movement of states across the country that are introducing and enacting laws to reform their statutes of limitation for childhood sexual abuse. Survivors typically need decades to come forward and the legal system offers the only real path to justice and the only viable means of identifying child predators who are operating under the radar.
Second, the courthouse doors need to be opened for victims even if their SOLs have already expired. By creating a “window” — a set time period for victims to initiate legal proceedings against their perpetrators — states would also be performing an essential public service by exposing the names and crucial information about these abusers. California and Delaware have embraced such reform, and others, including Arizona, Florida, New York and Wisconsin, are considering the same. In California, the public learned the identities of 300 child predators while the window was in place in 2003.
To their tremendous credit, Connecticut legislators are considering a bill, HB5473, which would, at once, extend the SOLs and create a window. But Connecticut bishops are vehemently opposing it. At the same time the Vatican was releasing documents online to prove its dedication to transparency, churchgoers received a letter from these bishops urging them to call their state representatives to kill the bill.
The letter focused first on dollars, telling parishioners that legislative reform that even temporarily eliminated SOLs “caused the bankruptcy of at least seven dioceses.” This is totally untrue. Only California and Delaware have thus far enacted such “windows” and in those states only two bankruptcies have been filed, with both being voluntary. In other words, they were filed to protect assets, not because the dioceses were without funds to pay victims. In fact, the San Diego diocese’s bankruptcy filing was, for all intents and purposes, thrown out of court because of its vast wealth — it, like dioceses across the country, owns millions of dollars in property, much of it not dedicated to religious use, so settlements were paid out of property and insurance proceeds. No services were even remotely affected.
The Connecticut bishops also told their parishioners that Catholic Charities and the programs under its aegis would be negatively impacted by lawsuits, but they failed to note that over 70 percent of the organization’s funding is paid by local, state and federal subsidies. Only a very small fraction comes from the parishes.
Further, the bishops claimed that they could never defend against potential lawsuits because some cases would be decades old. What they neglected to explain is that eliminating the SOLs does not eliminate the burden of proof on the plaintiff. Simply stated, if the plaintiff cannot prove the elements of the tort, the case does not go forward. And, unfortunately for the victims, much of the proof documenting how known child predators were moved from one diocese to another is hidden in the Church’s secret archives.
The bishops also asserted that SOL reform legislation is discriminatory because it targets theCatholic Church, which is patently false.
So it all comes down to a choice for Connecticut’s legislators: Do they defer to the bishops, or do they protect the children of their state? The correct moral and public policy choice is obvious.
Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Benjamin N. CardozoSchool of Law at Yeshiva University, and is the author of “An Action Plan For The Catholic Church” and “Justice Denied: What America Must Do to Protect Its Children.”
http://www.ctpost.com/opinion/article/The-truth-about-statute-of-limitation-reforms-469582.php
HB1104 amends SOL so as to short-circuit child-sex-abuse claims by Native American victims against Catholic priests
/in South Dakota /by SOL ReformSouth Dakota made the highly unusual move of reducing its child sexual abuse SOL so as to short-circuit child-sex-abuse claims by Native American victims against Catholic priests.
View Bill Text as PDF: South_Dakota-2010-HB1104-Enrolled
Signed into law March 29, 2010
AN ACT
ENTITLED, An Act to limit the source of recovery in certain civil actions for childhood sexual
abuse injuries.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 26-10-25 be amended to read as follows:
26-10-25. Any civil action based on intentional conduct brought by any person for recovery of
damages for injury suffered as a result of childhood sexual abuse shall be commenced within three
years of the act alleged to have caused the injury or condition, or three years of the time the victim
discovered or reasonably should have discovered that the injury or condition was caused by the act,
whichever period expires later. However, no person who has reached the age of forty years may
recover damages from any person or entity other than the person who perpetrated the actual act of
sexual abuse.
HB No. 1104 Page 1 An Act to limit the source of recovery in certain civil actions for childhood sexual abuse injuries.
=========================
I certify that the attached Act
originated in the
HOUSE as Bill No. 1104
____________________________
Chief Clerk
=========================
____________________________
Speaker of the House
Attest:
____________________________
Chief Clerk
____________________________
President of the Senate
Attest:
____________________________
Secretary of the Senate
House Bill No. 1104
File No. ____
Chapter No. ______
=========================
Received at this Executive Office
this _____ day of _____________ ,
20____ at ____________ M.
By _________________________
for the Governor
=========================
The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
____________________________
Governor
=========================
STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________ , 20___
at _________ o’clock __ M.
____________________________
Secretary of State
By _________________________
Asst. Secretary of State
Debating The Statute of Limitations In Child Sexual Abuse Cases; Current Limit Of Age 48 Would Be Lifted Under Bill, Christopher Keating, Courant Blogs.com
/in Connecticut /by SOL ReformAttorneys and advocates called Wednesday for Connecticut to become the fourth state in the nation to eliminate the civil statute of limitations in child sexual abuse cases.
The current age of 48 was established by the legislature in 2002 when lawmakers said that a victim should have 30 years to make a claim upon reaching the age of 18. As such, the age of 48 was written into the law.
Sen. Andrew McDonald, a Stamford Democrat who co-chairs the judiciary committee, said that many of the witnesses Wednesday were talking about the Roman Catholic Church and the allegations of sexual abuse against the late Dr. George Reardon at St. Francis Hospital and Medical Center in Hartford. But he said the bill doesn’t mention any particular entity.
“This legislation doesn’t speak about anybody in particular,” McDonald said. “It could be family members suing family members.”
Prompted by the Reardon case, some lawmakers are trying to eliminate the statute of limitations – in a similar move to a failed attempt last year that expired in the judiciary committee without a vote. While attorneys in the Reardon case favor the bill, the Catholic Church, the American Tort Reform Association, and the Insurance Association of Connecticut all testfied against it. An attorney for the Catholic Church said the bill is “almost certainly to be unconstitutional” if it is passed and signed into law.
“The purpose of the statute of limitations is to provide rights to both parties,” said Susan Giacalone, representing the insurance association. “It would allow cases that have ceased – this would revive a claim that might be unconstitutional.”
Maine, Delaware, and Alaska have all eliminated the civil statute of limitations in child sexual abuse cases, said Richard Kenny, an attorney for the past 35 years. In Delaware, there was a “window bill” that eliminated the statute of limitations retroactively for two years.
“The age 48 is purely an arbitrary number,” Kenny said. “Someone that’s 48 years of age and one week” is barred from making a claim, but someone who is 47 can file a lawsuit.
“We are not changing any of the requirements in terms of proving a case,” Kenny said. “If the case cannot be proven, that case is going out the door. … It’s the plaintiff that needs to prove that case. … The trend is going in the direction of extending the statute of limitations.”
The civil statute of limitations has been changed three times in Connecticut, and the last extension was in 2002.
In some cases from decades ago, claims can be difficult to prove because many of the witnesses may have died. Rep. Michael P. Lawlor, the committee’s co-chairman, said that in those cases, there may be very little provable evidence.
“You’re relying on the emotions of the jury in some ways,” Lawlor said.
Well-known Hartford attorney Wesley Horton, on behalf of the Catholic Church, submitted written testimony against the bill that said the current law “is already extraordinarily generous to people with sexual abuse claims from their childhood.”
“The important public purposes of having statutes of limitations will be eroded” if the bill passes, Horton wrote. “Law-abiding people, corporations, and insurance companies will lose confidence that they can rely on existing statute of limitations as they ask themselves and their legislators: ‘what statute of limitations will be the next one to fall?’ ”
“I feel like that pedophile gets away with it after the statute of limitations. I don’t agree with it,” said Sen. Edwin Gomes, a Bridgeport Democrat. “I want him to get everything that comes to him. Everything.”
Some victims have committed suicide, while others have suffered from substance abuse and depression, officials said.
“Sexual abuse and incest live and thrive in silence,” said Andrea Judd Laws, who is now 51 years old.
She said she was 14 years old and was babysitting when she was abused by a family member.
“I was an easy going, happy, little kid, but now I was broken,” Laws said. “At age 16, I attempted suicide for the first time. … There are still times that I wish I said nothing. … At least my parents understood why my personality changed so much. … Make coming forward worth it. Change this law. No statute of limitations.”
“Thank you for your bravery and your courage,” McDonald told Laws.
Cary Silverman, an attorney representating the American Tort Reform Association, opposed the bill because he said that any statute of limitation should not be changed after the fact.
“They ought not to be changed retroactively,” said Silverman, who also testified against the Connecticut bill last year. “Connecticut has the longest statute of limitations that I’m aware of.”
Nine other states have studied the issue during the past year, and eight did not receive a vote out of the legislative committee, Silverman said. But Oregon passed a law during the past year that raised the statute of limitations to 40 years of age – which is lower than Connecticut’s current level of 48 years old.
West Hartford resident John C. Brandon, 57, said that he met Dr. Reardon when he was 10 years old in 1962 and was in traction “when he came onto the ward one night” at St. Francis Hospital. Brandon said he then left with Reardon and went to an office in the hospital that was equipped as a photography studio.
“This guy had no business to be trolling the wards like the Grim Reaper,” Brandon said. “He did it many, many times for many, many years. I think it’s clear he was a doctor, and doctors are treated with a lot of reverence and respect.”
Brandon said he recalled the details of the photography studio in the hospital.
“This was big equipment – reflectors that you use to reflect the light,” he said. “Folks like me would like to have some redress because it’s the right thing to do. … You’re just left shaking your head, like what just happened?”
He said he had not recalled Reardon’s name, adding, “This was the first and only time meeting the guy.”
“What happened to you is outrageous, whether it happened in 1962 or now,” Gomes said. “I don’t care when it happened. … I don’t think there should be any statute of limitations.”
Anne Latrina Brown, a former nurse at the state’s Riverview Hospital, said the statute should be lifted. Many of those she treated at Riverview who had severe addictions to alcohol and drugs had been sexually abused as children.
Jennifer Judd Aparico said she was “still in survivor mode” and did not immediately report the alleged abuse by her family member for many years. Her aunt, Andrea Judd Laws, testified earlier at the hearing.
“Counseling was not an option because they are mandated reporters,” she said. “Every door was closed at every turn. … I thought I was protecting my siblings. You can do what you want to me. Just leave them alone.”
“I’m not sure exactly when it stopped,” she said, adding that many thoughts had been blocked out from her mind.
Sen. John Kissel said, “That took an incredible amount of courage to do.”
Peter Sullivan said that in 1968 his three brothers and he were all victimized by Reardon.
“Only my youngest brother is allowed to bring suit,” Sullivan told legislators. “I have no recourse whatsoever because I am over 48. I don’t know how anyone can say that is justice. … I’ve been to the West Hartford Police Department to look at pictures of myself. It’s a nightmare I’m going to have to live with the rest of my life. … It’s just not justice.”
Sullivan contacted the West Hartford police, and he was asked to bring pictures of himself from those days in the 1960s.
“All four of us were victimized, and in 30 years, not one of us talked to each other about it,” Sullivan said. “We all thought it was an individual situation with each of us.”
A lawyer for various churches who handles abuse cases, L. Martin Nussbaum, said later that the church often hires insurance archaeologists to find old insurance policies.
“Claims that are that long ago are reparations,” Nussbaum told lawmakers. “Because of the out-sized press coverage, there’s less and less confidence in the judicial system.”
A lawsuit was filed against the Hare Krishnas with 400 claimants that led to a bankruptcy in Los Angeles that has not received much publicity nationally, he said.
“There’s been out-sized reporting about the Catholic situation,” Nussbaum said. “Compare that to the public schools, anywhere in the country, but there’s a perception that there’s a Catholic problem.”
“Because of sovereign immunity, there’s no recovery” in cases against public schools, he said. Both Nussbaum and John King, an attorney for the church, said there is no “level playing field” in the process of filing lawsuits between public and private cases.
After the Connecticut law was changed in 2002, 81 claims were filed against the Catholic Church, Nussbaum said. “Statute of limitations perform an important purpose,” he said.
“Every single time, in every single state … they have been plaintiffs attorneys seeking to sue the Catholic Church,” Nussbaum said. “The bill is almost certainly to be unconstitutional. … This legislation is really being driven by the Dr. Reardon case. … This is about the Reardon case.”
“Let me interrupt you. I don’t think that’s fair,” McDonald said. “I don’t think it’s an accurate statement to say that’s the focus of the legislation, at least from my perspective.”
Nussbaum added, “I’ve never seen a clearer record that if the legislature passes the bill, it will pass a bill that is unconstitutional.”
Both St. Francis Hospital and the Archdiocese of Hartford are currently being in the Reardon case.
“I didn’t know that the Archdiocese was a defendant in that litigation,” McDonald told the lawyers for the Connecticut Catholic Public Affairs Conference.
Nussbaum said the state legislature passed a law in 2002 that allowed more lawsuits against the Catholic Church, but “it did nothing about identical circumstances” in a case involving female athletes and sexual abuse at Southington High School.
“Is it possible that the Catholic Conference could be sued? The Vatican is being sued in some cases,” Nussbaum said.
At one point, a legislator said the testimony was personal for him.
“I understand this issue in a very personal way,” said Rep. Gary A. Holder Winfield, a New Haven Democrat. “This bill is not about the Catholic Church. This bill is beyond the Catholic Church. … There’s a lot of pain for those people.”
Marci Hamilton’s Testimony on Connecticut Raised Bill No. 5473.
/in Testimony: Civil Elimination, Testimony: Connecticut /by SOL ReformTestimony Before the Connecticut State Joint Committee on Judiciary • Relative to Raised Bill No. HB-5473: An Act Concerning Actions to Recover Damages for the Sexual Abuse of a Minor
/in Connecticut, Testimony /by SOL ReformMarci Hamilton’s Testimony on Raised Bill No. 5473.